City of Baltimore v. Borinsky

• Citation: 212 A.2d 508,239 Md. 611
• Decision Date: 02 August 1965
• Docket Number: No. 385,385
• Parties: CITY OF BALTIMORE et al. v. Sarah BORINSKY.
• Court: Court of Appeals of Maryland

Page 611

239 Md. 611

212 A.2d 508

CITY OF BALTIMORE et al. v. Sarah BORINSKY.

No. 385.

Court of Appeals of Maryland.

Aug. 2, 1965.

Simon Schonfield, Asst. City Sol. (Joseph Allen, City Sol., and Ambrose T. Hartman, Deputy City Sol., Baltimore, on the brief), for appellants.

Edward Azrael, Baltimore (Azrael & Gann, Baltimore, on the brief), for appellee.

Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

The Mayor and City Council of Baltimore (the City) has appealed an order of the Baltimore City Court reversing the action of the Board of Municipal and Zoning Appeals of Baltimore City (the Board) which denied the Appellee's application to construct an office and warehouse building on her property in a Residential Use District.

I

The Appellee has filed a motion to dismiss the City's appeal on the grounds that, although the order for appeal was entered on behalf of both the City and the Board, the appeal is, in fact, the appeal of the Board; that the order for appeal to this Court was not approved by the Mayor as provided for by the Baltimore City Charter; and that the City is not properly a party to this cause.

When the Appellee filed her Motion of Appeal to the Baltimore City Court from the resolution of the Board, she made both the Board and the City parties defendant. Both the City and the Board, through the office of the City Solicitor, filed an answer to the Appellee's petition in support of her Order of Appeal. Judgment was made absolute for the appellee in the Baltimore City Court on November 10, 1964. On the same day, the Board, by majority action, voted to have its Chairman and Executive Secretary write to the City Solicitor or meet with him to request that an appeal be taken from the order of the Baltimore City Court to this Court. On November 12, 1964, the Chairman of the Board wrote to the Coty Solicitor giving reasons why, in the opinion of the Board, an appeal 'must be taken.' Section 65 of the Baltimore City Charter (1946) states that the City Solicitor is the legal advisor of the City and its several departments, commissions and boards. Section 66 of the Charter provides that no appeal shall be taken except upon written order of the City Solicitor, approved by the Mayor. An Order of Appeal was filed in the Baltimore City Court, signed by the City Solicitor and an Assistant City Solicitor, on November 23, 1964. As of that date, (admittedly, the letter was actually written on December 9), the Mayor wrote to the City Solicitor approving the entering of this appeal. The Mayor's letter was not filed in the Baltimore City Court and did not accompany the Rocord when it was sent to this Court, but was sent directly to the Clerk of this Court and was received by him on December 10, within the 30 day period from the entering of the final judgment in the court below.

The City, in the argument before us, conceded that the Board is not a proper party to an appeal which involves its own decision. The Board is an administrative body which has no official interest in the matters which come before it other than to decide them according to the law and the proved facts. Nuova Realty Co. v. City of Baltimore, 197 Md. 266, 272, 78 A.2d 765 (1951); Zoning Appeals Board v. McKinney, 174 Md. 551, 562, 199 A. 540, 117 A.L.R. 207 (1938).

The City, however, is clearly a proper party in these proceedings. The zoning ordinance is an exercise of the City's police power. Grant v. City of Baltimore, 212 Md. 301, 314, 129 A.2d 363 (1957); Jack Lewis, Inc. v. Baltimore, 164 Md. 146, 153, 164 A. 220 (1933); Tighe v. Osborne, 150 Md. 452, 456-457, 133 A. 465, 46 A.L.R. 80 (1926). The City has a legitimate interest in the effectuation of its policies.

In Mayor & C. C. of Baltimore v. Shapiro, 187 Md. 623, 51 A.2d 273 (1947), we overruled a motion to dismiss an appeal which the City had filed, as here, from an order of the Baltimore City Court reversing an action of the Board. In that case, Judge Henderson, for the Court referred to the provisions of the Enabling Act, Code Article 66B, Section 7, which provide for an appeal from any decision of the Board, by any person, officer, board or bureau of the municipality, and said, at 187 Md. 627, at 51 A.2d 275, 'we cannot say that * * * the City has no legitimate interest in the subject matter or outcome of the litigation, even if such inquiry were open under the unqualified provisions of the statute.' See also Town of Berwyn Heights v. Rogers, 228 Md. 271, 280, 179 A.2d 712 (1962).

The Appellee contends that the City should not have been named as a party in the appeal to the lower court from the Board's decision, and that she should have merely filed a Petition for Review, as the Enabling Act provides. The City answers that, the Appellee having made it a party, she has no standing now to question her own act. If the City had not been joined as a party defendant, it would have had the right, on petition, in the court below, to be made a party because of its interest. Having been made a party by the Appellee, its right to appeal from the order below is clear.

The Appellee further contends that her motion should be granted because, in fact, the City is only appealing on behalf of the Board, which had no right to appeal. The contention is answered in Mayor & C. C. of Baltimore v. Shapiro, supra. There, it was alleged in the motion to dismiss that the City had simply consented to permit the appeal to be prosecuted in its name for the benefit of and at the expense of certain private parties. We refused to inquire into the City's motives for taking the appeal, and said, at 187 Md. 627, at 51 A.2d 275, we did not regard the fact that private persons, denied the right to intervene for the purpose of appeal, had agreed to reimburse the City for costs, as controlling. We said: 'Whether a particular case should be appealed * * * must rest in the sound discretion of the City authorities.'

The fact that the Board joined in the appeal to this Court, when it was not a proper party, is immaterial. If, as here, one of the parties to the appeal has legal standing, that is sufficient. Windsor Hills Improvement Association, Inc. v. M. & C. C. of Baltimore, 195 Md. 383, 73 A.2d 531 (1950).

It is immaterial also, in our view, that the necessary approval of the appeal by the Mayor was not filed with the original order of appeal and was filed in this Court instead of below. The purpose of the requirement in the Charter is to show that the appeal was authorized by the Chief Executive of the City. That authorization was made manifest within the necessary 30 day period. That the Mayor's letter was filed with the Clerk of this Court instead of below, and that the letter was pre-dated, like the language of the Board intimating that an appeal must be taken, are unimportant trivia. There was compliance with the substance of the statutory requirements, and, if there were technical irregularities, the Appellee was in no way prejudiced. See Irvine v. Montgomery Co., 239 Md. 113, 210 A.2d 359 (1965) and Board of Co. Comm. v. Kines, 239 Md. 119, 210 A.2d 367 (1965).

The motion to dismiss the appeal is denied. We turn to the merits.

II

The Appellee, Sarah Borinsky, and her brother Louis are the owners of a lot of ground situate in Baltimore City and known as 2649 Quantico Avenue, midway between Park Heights Avenue and Pimlico Road. The property was inherited by them from their deceased parents who acquired it in 1925 or 1926. At that time, the property was improved by 53 garages which were then rented to neighbors for the storage of automobiles. Ten of these garages have been razed and the remaining 43 are not being used save for nine or ten which are from time to time used by tradespeople for the storage of miscellaneous items. Practically all of the garages are dilapidated. The district in which the lot is located has always been zoned for Residential Use.

The lot is irregular is shape in that its width at its northern boundary line, fronting on Quantico Avenue, is approximately 115 feet, and it tapers down for a distance of approximately 297 feet so that at its south end it is only about 20 feet wide. This is the only lot of ground in the block on the south side of Quantico Avenue with frontage on Quantico Avenue. The lot of ground lies between two alleys. The entire eastern line of the lot binds on an alley running in the rear of the back yards of dwelling houses fronting on Pimlico Road. The property to the west, across the other alley, consists of converted houses used for commercial purposes, fronting on Park Heights Avenue.

The property to the west is in a First Commercial Use District. The property to the east is zoned Residential, as is the property to the north, except for a one-story masonry office and warehouse building on the north side of Quantico Avenue. This building was recently permitted by the Board by allowing an extension into the residential zone under the provisions of Section 14 of the Baltimore Zoning Ordinance. That section is not applicable to the property here involved, because the adjacent commercial zone to the west is separated from the property by an alley. Quantico Avenue is about 50 feet wide between the building lines to the north and south.

The Appellee filed an application with the Building Inspection Engineer to construct a one-story masonry building and warehouse on her property, similar to the building on the north side of Quantico Avenue. The Engineer has no legal power to permit an office or commercial use in a residential zone and refused the application. The Appellee appealed tot he Board. In her appeal, she requested a special exception under Section 36(b) and (c) of the Zoning Ordinance. The appeal was heard by four of the Board members, the fifth member being absent.

At the hearing before the Board, Louis Borinsky, the Appellee's brother and one of the owners of the property, testified that the garages on the...